Response to European further network neutrality consultation

Dear sirs

I am writing to reply to your “On-line public consultation on "specific aspects of transparency, traffic management and switching in an Open Internet". The questionnaire you set out is far too narrow to address the real policy questions regarding traffic management, which is why I am sending a reply by email. I am very happy for the email to be published in full in evidence and have provided a PDF copy for those purposes. I am replying in a personal capacity.

There are at least four specific areas in which the Commission needs to carry out more work on neutrality which I briefly address in turn: the evidence base, reporting complaints, the legal basis for co-regulation of network neutrality, and expert input on managed/specialized services definitions.

[1] The evidence base

BEREC has attempted to aid the European Commission by asking ISPs to self-report violations of neutrality. While I am sympathetic to BEREC’s resource gap, that is not an adequate evidence base, as analysed more fully by Alissa Cooper of the Internet Architecture Board and the FCC OIAC.

What is needed is independent testing and monitoring of violations, a model established by SamKnows in its work with the US and UK regulators.

The European Commission should commission similar research for all 27 Member States. NRAs cannot and will not conduct such research on their own initiative and governments will continue to provide annual reports to the Commission which are economical with the truth.

[2] Reporting complaints

Several open source tools are now available which allow citizens to register complaints, which should be adopted across Europe – in fact, it is surprising that the European institutions have not implemented their own such tool. Examples are: [i] Neubot, [ii] Glasnost, [iii] RespectMyNet. It should be a matter of grave concern to European policymakers that netizens are rejecting NRA or BEREC mechanisms, and making use of such tools which have no force beyond indicative case studies. As a matter of urgency, the Commission and NRAs should be auditing and investigating such cases in cooperation with such platforms. ARCEP’s work in this regard on rapid response to blocking and throttling is very important.

That answers the call of Director General Madelin at the Parliament-Commission net neutrality summit in 2010 for more evidence-based policy-making on a case-by-case basis. The European Commission should also urgently investigate the practices of the US FCC-brokered Broadband Internet Technical Advisory Group, to explore whether such a group is appropriate for the European Union. If such an approach is taken, it should follow a formal co-regulatory model as explored in [3] below.

[3] The legal basis of co-regulation

Any attempts by national authorities to permit self-regulation breach the terms of the European inter-institutional agreement on co- and self-regulation, which explains that issues which raise fundamental rights may not be devolved to self-regulation. I have discussed this at length in two recent monographs, so will not belabour the point, which is in any case well-known to Commission officials. The human rights perspectives were graphically illustrated in recent network neutrality policy documents published by the Council of Europe and the European Data Protection Supervisor.

In any case, the most extreme attempts to achieve industry consensus around self-regulation, that in the United States brokered by Minister Vaizey, Ofcom, and even Tim Berners-Lee (Chair, W3C) has spectacularly failed, with Vodafone, EE (T-Mobile, France Telecom) and Virgin Media (the monopoly cable provider) refusing to join, demonstrating the inadequacy of such an approach. It is both bad regulatory practice and wrong in principle to attempt such solutions in ‘the shadow of the law’.

[4] Managed or specialised services definitions

Much more work is required on defining universal broadband service and the non-public Internet based services which companies such as British Telecom, Verizon and AT&T have already introduced to avoid the net neutrality debate. A useful contribution would be to invite the FCC OIAC subcommittee dealing with this issue to discuss the techno-legal definitional problems with European experts, in a setting similar to that in the excellent BEREC-OECD workshops on IPinterconnection. Examples of European authors who should be invited are the authors of this excellent primer on the subject: La Neutralité d'internet : Un enjeu de communication, Hervé Le Crosnier, Valérie Schafer, Francesca Musiani, as well as Juan Carlos de Martin of NEXA, director of the Neubot project. Note also the recent publication of Prof. Scott Jordan on the need to maintain openinterfaces.

 I am as ever happy to expand on any of these points. Note that my forthcoming MIT Press book (with computer scientist Dr Ian Brown) will discuss the issues in more depth.

Sincerely

Professor Chris Marsden